City takes dim view of junked car 'planter'

Down the street from my house, one of my neighbours has an old bathtub
filled with earth sitting on the front lawn. In season, it contains flowering
plants and is quite attractive. During the rest of the year, it just looks
like an old bathtub.

I was reminded of my neighbour s bathtub when I came across a recent court
case from the United States Court of Appeals in Texas.

Michael Kleinman operates a chain of Planet K stores in the San Antonio and
Austin, Texas, areas. The stores are what a judge called funky establishments
that sell novelty items.

Kleinman has a tradition of celebrating new store openings with a car bash,
a charity event at which the public pays a dollar per person for the privilege
of sledge-hammering a car to a smashed wreck. The proceeds are donated to
charity.

The wrecks have the tires and engine removed, and the roof sawed off. Then
they are filled with dirt, planted with cactus and other vegetation, and
painted. Placed outside each store, the planters serve as unique advertising
devices.

When Kleinman opened a new store on Interstate 35 in San Marcos, Texas, he
created a car planter with an Oldsmobile 88. The smashed car was planted with a
variety of native cacti and decorated with paintings of life in San Marcos.
Incorporated into the painted design are an image of Ralph the Swimming Pig (a
local San Marcos attraction), and the phrase Make love not war.

After the conversion of the smashed wreck into a car planter, the city of San
Marcos ticketed Planet K and various employees under an ordinance banning the
display of junked vehicles.

The ordinance declares junked vehicles to be a public nuisance and prohibits
citizens from displaying them on their property.

Kleinman contested the tickets at the municipal court level and lost.

John Furly Travis was one of the artists commissioned to paint the wreck. At
the court hearing, he testified that he intended his images to convey the idea
that you could take a junked vehicle, junk canvas and create something
beautiful out of it.

Fellow artist Scott Wade said he sought to transform a large gas-guzzling
vehicle into something that s more respectful of the planet and something that
nurtures life as opposed to destroys it. Wade explained that his intent was to
describe American car culture and the link between gasoline and the war in Iraq.

After losing in municipal court and district court, Kleinman and the two
artists appealed to the Fifth Circuit Court of Appeals. The issue there was
whether the junked-car ordinance violated the freedom of expression rights in
the First Amendment to the U.S. Constitution.

In her decision released Feb. 10, 2010, chief judge Edith Jones attacked
Kleinman s arguments the same way his customers attacked the Oldsmobile.

She ruled that the car planter was a utilitarian device, an advertisement,
and ultimately a junked vehicle. Regulation of junked vehicles, she wrote,
is within the city s traditional municipal police powers and the regulation was
justified.

The city did not intend to regulate free speech, she ruled, but only to pass
a health and safety ordinance. That ordinance achieved the city s legitimate
interests with only incidental restriction on freedom of expression.

Planet K, she noted, was still free to display the car planter behind a
fence, or indoors, or in a garage enclosure, but not in front of the store.

Since the February court ruling, Kleinman has filed another appeal, asking
all 11 judges of the Fifth Circuit Court of Appeals to review the case. If they
refuse to hear it, he told a local newspaper, then I guess it s the Supreme
Court here we come. In Toronto, section 629 of the Municipal Code requires yards
to be kept clean and free from accumulations of rubbish, litter, garbage,
dilapidated structures, and wrecked, inoperative, discarded or dismantled
vehicles or equipment.

I wonder if my neighbour s bathtub is safe from Toronto s city inspectors.

Bob Aaron is a Toronto real estate lawyer. He can be reached by email at bob@aaron.ca, phone 416-364-9366 or fax 416-364-3818.Visit the Toronto Star column archives at http://www.aaron.ca/columns for articles on this and other topics or his main webpage at www.aaron.ca.